ABINASH CHANDRA ROY Vs. TARA PRASANNA ROY

JUDGEMENT

(1.) This appeal arises in a suit for a declaration of title to certain land and for joint khas possession therein. The defendants are the appellants. The plaintiffs case briefly is as follows : There is non-transferable occupancy holding which was held by one Sheikh Kalu under the plaintiffs and the defendants. The plaintiffs had a nine annas share in the superior interest and the defendants a seven annas share. In a sale in execution of a money decree the defendants purchased the interest of Kalu's heirs in the holding. This was before the new Bengal Tenancy Act came into operation. Thereafter the heirs of Kalu abandoned the holding and the defendants went into occupation thereof. The plain, tiffs claim that they are entitled to compensation from the defendants to the extent of their share in the superior interest for the years 1340-1342 B.S. and to joint possession of the land also to the extent of their nine annas share. The defence taken was that the holding was purchased in execution of a rent decree and not a money decree and that the defendants were recognized as tenants. It was contended that, this being so, the holding had passed to the defendants and the plaintiffs could not get joint possession thereof or compensation. An alternative defence was that the holding had not been abandoned by the heirs of Kalu Sheikh who were still on the land and that therefore the plaintiffs could not get joint possession or compensation.

(2.) The learned Munsif held that the sale in which the defendants purchased the holding was a money sale and not a rent sale and that there has been no recognition of the defendants as tenants by the plaintiffs. On the question of abandonment the finding of the learned Munsif is that the heirs of Kalu had not abandoned the holding. He says that the heirs of Kalu would have a very good defence to any suit for ejecting them but he adds that as they are not parties to the present suit, there is nothing to prevent the plaintiffs getting a decree for joint khas possession with the defendants. He then declared the plaintiffs title to a nine annas share in the superior interest and gave them khas possession jointly with the defendants of the land of the holding. He also awarded them compensation at the rate of Rs. 8 per annum for two years only, i.e. for the years 1341 and 1342 B.S. The defendants appealed. The learned District Judge agreed with the trial Court in its findings that the sale was a money sale and that there had been no recognition by the plaintiffs of the defendants as their tenants. After arriving at this finding he says "they (defendants) cannot therefore retain possession of the nine annas share of the plaintiff." As regards the question of abandonment the learned Judge held that as there was no denial in the written statement of the plaintiffs allegation of abandonment the defendants could not be heard to say that the heirs of Kalu had not abandoned the holding. He then says: The trial Court found against the defendant on the question of abandonment. I agree with its finding. As a result I hold that the appeal must fail.

(3.) There was a cross-objection by the plaintiffs, wherein the plaintiffs objected to the remarks of the trial Court that the heirs of Kaloo could not be ejected. The learned District Judge held that these observations of the trial Court were unnecessary for the decision of the suit. The defendants now appeal to this Court. Learned advocate on their behalf accepts the position that the purchase of the defendants was at a money sale and that the plaintiffs have not recognized them as tenants. He contends however that the plaintiffs suit must fail, inasmuch as one of the tenants whose interests were sold has not abandoned the holding and is still on the land cultivating a portion of it as a tenant under the defendants. He points out that the learned District Judge was in error in holding that the defendants could not contest the plain, tiffs case of abandonment because they had not denied this allegation in their written statement and that he was also in error in holding that the learned Munsif had found against the defendants on the question of abandonment.